Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law.

• Author: Sherman, William R.
• Position: Book review

CREATING THE ADMINISTRATIVE CONSTITUTION: THE LOST ONE HUNDRED YEARS OF AMERICAN ADMINISTRATIVE LAW. By Jerry L. Mashaw. New Haven and London: Yale University Press. 2012. Pp. x, 316. Cloth, $75; paper, $45.

INTRODUCTION

These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence.

We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre to the Founders, leaving these agencies with a deficit of constitutional legitimacy. This notion can be found in the Supreme Court's conclusion that the Affordable Care Act's Medicaid provision impermissibly commandeers state resources, (1) in the adherence to congressional delegation in Chevron and its progeny, (2) and in the academic debate over the role of political policy preferences in agency rulemaking. (3)

Supporters and adversaries of agency action alike perceive this lack of historical legitimacy as a weakness either to be shored up or attacked. (4) Previous accounts of the development of the administrative state have posited that its key features--congressional delegation, internal and external rules, adjudication of individual rights, judicial review of agency action, specialized bureaucratic knowledge--arose as a result of legislation in the New Deal and World War II eras, (5) through the Progressive movement, (6) at the adoption of civil service reform and the Interstate Commerce Act in the 1880s, (7) or as far back as the Civil War. (8) Thus, modern critiques sketch a long fall from a state of constitutional grace, during which the nation's legal system has drifted far from the simple, self-executing laws of the early United States. (9)

Wait. Not so fast. Jerry L. Mashaw's (10) new "exercise in historical institutionalism" (p. 17), Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law, painstakingly and conclusively shows that the conventional account of the provenance of and the problems posed by administrative law is just plain wrong. Mashaw demonstrates that administrative governance on a broad and complex scale has existed from the earliest days of the Republic (p. 5) and that the settled patterns of behavior surrounding it sketch the outlines of an unwritten "administrative constitution" (p. 16).

Instead of looking at the 1860s, 1880s, 1910s, or 1930s, Mashaw starts at the beginning--on the first pages of the U.S. Statutes at Large (p. viii). What he finds is the record of a nation neither hidebound by tripartite constitutional theory nor obsessed with the differences between rulemaking and rule implementing. Rather, the record shows an intensely pragmatic Congress and executive attempting to solve problems using whatever tools were available and inventing new tools as they went. Where the modern assumption has been that founding era Congresses specifically delegated only very discrete powers to administrative agencies, in fact the first Congress established the Departments of War and State, specifying little more than that these agencies should act as the president instructed, and authorized agencies to adopt whatever regulations the president chose with respect to military pensions and certain aspects of trade embargoes (pp. 290-91).

Thus, the history of the American administrative state is much more complex, and more interesting, than the fall-from-grace myth that underlies so many of our current debates. In setting the record straight, Mashaw has written an indispensable book for anyone seeking to understand the roots of, legitimacy of, and problems facing the American administrative state. This work is bound to be excerpted at length in textbooks and cited frequently in briefs, and it should spark renewed examination of "the lost one hundred years of American administrative law." (11)

It should surprise no one that Mashaw has produced such a valuable volume. He has been an incisive scholar in public law and administrative governance for decades, covering subjects as diverse as auto safety, (12) public choice theory, (13) and administrative due process (14) (not to mention a sailing memoir). (15) His excavation of early administrative law is born of the same intellectual curiosity.

1. APPROACHING AN INSTITUTIONAL HISTORY

   Creating the Administrative Constitution is not a conventional history; rather, it is a legal and institutional history that chooses as its focus the policies, procedures, and practices of Congress, agencies, and, to a lesser degree, the courts. To do so, the book explores a mix of larger historical themes and specific examples of administrative law at work. The larger themes include hierarchical authority, judicial review of official action, and political accountability (or democratic legitimacy). The in-depth examples include the 1808 trade embargo, the General Land Office, and steamboat regulation. In this way, the book not only traces the origins and evolution of broad concepts and canons but also takes a deep-dive look at the creation and application of individual regulatory regimes. The result is a history that is both granular and broadly thematic.

   At the outset, Mashaw explains that his subject requires a different type of primary source (p. 6). The standard account of eighteenth- and nineteenth-century national government recalls a regime of self-executing laws implemented by "courts and parties" (16) and supplemented by programs of patronage and subsidy. Even today, we are accustomed to finding the rules of administrative governance in the pages of appellate opinions--need anyone be reminded that Chevron is the most cited Supreme Court case in public law? (17) But Mashaw does not seek evidence of the early administrative state in judicial opinions. Instead, he looks first to "the techniques of administrative empowerment and control that Congress devised" and second to the "executive and administrative practices" that developed to implement Congress's will (p. 7). These constraints on governmental action, he explains, were primarily internal, rather than external, and provide a wealth of data about what the early government was doing and how (pp. 6-7). In looking beyond court decisions for the sources of administrative law, Mashaw finds what has been hiding in plain sight: an abundance of information about how the administrative state developed from 1787 to the 1880s.

2. IN THE BEGINNING

   The book starts, appropriately, in the Federalist period, from 1787 to 1801 (pp. 17, 29). As Mashaw puts it, the first Congresses were "in a sense an extension of the Constitutional Convention" (p. 17). This is true in more than one sense. First, to the extent that we can glean the Founders' vision for the nation from something other than the Constitution, the actions of the first Congresses provide a source comparable to the proceedings of the Convention and the ratification debates. In Congress, many of the same people who crafted the Constitution were struggling to create a nation that was republican, effective, and protective of individual rights, and the ways they pursued these goals are instructive. Second, the structure and content of the statutes adopted by the first Congresses reflected tensions similar to those animating the Constitutional Convention: the need to legitimize the national government, to cure the maladies afflicting the Articles of Confederation period, and to respond to outside threats.

   In this period, Congress responded to emerging problems, and a modern reader gets the sense of a frantic effort to create a national state on the fly. Where the wartime and Articles of Confederation Congresses took administration into their own hands through a seemingly endless number of ad hoc and standing committees exercising a sort of executive authority, the record indicates that by 1787, members of Congress began to recognize the need to delegate. Congress pursued this delegation by using whatever national network of governing entities already existed and creating new commissions, offices, and boards. The first Congress established the Departments of War, Foreign Affairs, and Treasury; the Navy and the Post Office soon followed (p. 34). There was nothing demure about the scope of power delegated by Congress in this period; for example, laws on navigation and shipping administration included delegations regarding everything from registering vessels to building lighthouses to authorizing seamen's hospitals. (18)

   Pervasive in this account is what can be interpreted as an intensely pragmatic approach to governing. If officials with certain expertise were needed, Congress might create an office to employ those people. (19) If there was no money to fund governmental employees, Congress might establish a bounty or commission system to motivate its officers to enforce the law. (20) If professional governmental administrators were necessary in a location or subject area where the national government did not have a presence, Congress might order state court judges to implement a program. (21) If a national standard was necessary for port clearance, it might stipulate that compliance with state inspection and quarantine laws was sufficient--thus effectively delegating enforcement of the national regulation to state officials. (22)

   In other words, Congress demonstrated an extraordinary willingness to experiment with administrative techniques and to adjust those techniques to the problems, resources, individuals, and governmental structures...